DOCSLIB.ORG

Judicial Cooperation and Legal Interpretation in European Union Tax Law

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Judicial Cooperation and Legal Interpretation in European Union Tax Law JUDICIAL COOPERATION AND LEGAL INTERPRETATION IN EUROPEAN UNION TAX LAW Robert F. van Brederodel I. INTRODUCTION The relationship between European Community (EC or Community) law and the national laws of its member states is2 complicated. The treaties establishing the European Communities have created a law system sui generis, i.e., separate from that of the individual member states, with its own terminology and under- lying legal principles. Community law is the common internal law of the member states rather than a law between the states, as is the case in traditional international law. Beyond the mere creation of mutual rights and duties between the states, as under traditional international law, Community law regulates the relation between I Dr. Robert F. van Brederode is a tax lawyer concentrating in the area of value added tax (VAT) and other transaction taxes. He has over 25 years experience in the field prac- ticing on both sides of the Atlantic, currently as a partner with International VAT Con- sultants. In addition, he teaches courses as an adjunct professor at New York University, School of Law, Graduate Tax Program. Previously, Dr Van Brederode was a partner with PwC, leading the Netherlands VAT & Customs practice, and professor of tax law at the Erasmus University, School of Economics. He can be reached at [email protected]. 2 Treaty of 25 March 1957 establishing the European Economic Community, 298 U.N.T.S. 11 (entered into force 1 January 1958); Treaty of 18 April 1951, establishing the European Coal and Steel Community (entered into force as of 23 July 1952); Treaty of 25 March 1957, establishing the EURATOM (entered into force on 1 January 1958). Together, EURATOM, ECSC and the EEC are the founding treaties of European integra- tion as amended by later treaties. The ECSC expired on 23 July 2002, and since then the coal and steel sectors are incorporated within the legal scope of the EEC Treaty. The Maastricht Treaty of 1992 changed the name EEC to EC for the simple reason that the Community, beyond mere economic policy, is concerned with social, cultural and envi- ronmental policies. It also established the European Union (EU). The terminology may be confusing, especially to the non-European reader. It is important to realize that EC and EURATOM, with their common structures and institutions remain totally in place. The EU comprises the totality of the relations between the Member States, but is not a separate legal entity. The EU, therefore, is in essence a combination of supranational and intergovernmental power, but in the political sense only. 3 See, e.g., Case 26/62, Van Gend & Loos v. Neth. Inland Revenue Admin., 1963 E.C.R. 3; Case 6/64, Flaminio Costa v. E.N.E.L., 1964 E.C.R. 1194; Joined Cases C-6/90 & C- 9/90, Francovich v. Italy, 1991 E.C.R. 1-5357. FA ULKNER LA W REVIEW Vol. 1-1:53 the Community and its subjects, including member states and pri- vate and legal persons, and between these subjects amongst them- selves.4 As a distinctive legal order, Community law regulates the powers, rights, and obligations of the Community and its subjects. Community law also provides for the procedures required for de-5 termining, adjudicating, and sanctioning infringements of the law. Community law is not common law or civil law; therefore, legal principles and precedent developed under common or civil law have no direct bearing on Community law. 6 Even if the same legal terminology is used, the meaning is not necessarily the same. 7 According to established case law of the European Court of Justice (ECJ), Community law has priority over the national laws of the member states. 8 Primacy of Community law arises from the treaty itself, because realization of the objectives of the EC, particularly the establishment of a common market, would be illusory without the treaty.9 Primacy in this context should not be read as hierar- chy, but be understood in terms of substitution. When a country accedes to membership of the Community, it voluntarily limits its sovereign rights in favor of the Community it has decided to join. In interstate legal transactions, interpretation of the agree- ment is a matter for the contracting parties. However, the actions of the contracting parties of the EC and their subjects are super- vised by the ECJ. Therefore, the ECJ has a unique role. National courts operate within, and can rely on and refer to, their national legal tradition, but that was not the case at the European level. The ECJ had to create such a legal order from the texts of the treaties, 4 See THE LAW OF THE EUROPEAN UNION AND THE EUROPEAN COMMUNITIES 71 (P.J.G. Kapteyn et al. eds., 4th rev. ed. 2008). 5 Joined Cases 90/63 & 91/63, Comm'n v. Lux. & Belg., 1964 E.C.R. 1217. 6 See Case 64/81, Nicolaus Corman & Fils SA v. Hauptzollamt Gronau, 1982 E.C.R. 13. 7 See Case 51/76, Verbond van Nederlandse Ondememingen v. Inspecteur der Invoer- rechten en Accijnzen, 1977 E.C.R. 113. 8 See Case 6/64, Flaminio Costa v. E.N.E.L., 1964 E.C.R. 1194. 9 The supremacy of EC law is a cornerstone principle of Community law but the treaties do not provide for it. A Declaration attached to the Lisbon Treaty provides, however, that "in accordance with the settled case-law of the ECJ, the treaties and the law adopted by the EU on the basis of the treaties have primacy over the law of member states, under the conditions laid down by the said case-law." Treaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing the European Community, Dec. 3, 2007, 2007 O.J. (C 306) 30 [hereinafter Lisbon Treaty], Declaration 17. Although it is not legally binding, this Declaration represents the Member States' recognition of the ECJ case law on primacy of Community law. 2009 EUROPEAN UNION TAX LA W while referencing general principles of law, such as good faith,0 legal certainty, equality, legitimate expectations, proportionality,' and abuse of rights.'1 These principles are derived directly from the treaties, or are common to the legal systems of the member states. There also exists a cooperative relationship between Com- munity law and the laws of the member states. Community law may refer to national law' and national law may supplement Community law 13 or serve to implement it. The extent to which Community law affects member state national laws depends on the legal instrument applied to shape Community policy. The most important legal instruments are regulations and directives. A regu- lation is directly applicable in every member state (i.e., it does not require any action by the national legislature), and it can convey rights to, and impose obligations on, the member states, their bod- ies, and individuals. 14 A directive, however, is only binding on each member state as to the result to be achieved, and leaves to the national authorities the choice of form and methods. 15 Member states are required to loyally cooperate with Community law, a principle derived by the ECJ from article 10 of the EC treaty. This principle includes the legal obligation of the states to pay damages for losses incurred by individuals as a result of the non-compliance of a state with Community law. 16 Private parties may invoke directly effective provisions of Community law before their national courts, even in cases where national rules con- 10 Proportionality is now included in the European Community Treaty through article 5, and it is generally applicable to Community action. Treaty Establishing the European Community, Feb. 7, 1992, 1992 O.J. (C 224) 1 [hereinafter EC Treaty], arts. 1-5. 11See TAKIS TRIDIMAS, THE GENERAL PRINCIPLES OF EU LAW (2d ed. 2006); HENRY G. SCHERMERS & DENIS F. WAELBROECK, JUDICIAL PROTECTION IN THE EUROPEAN COMMUNITIES (6th ed. 2001). 12 For instance, the nationality requirement plays an important role in determining who benefits from the freedom of establishment or the free movement of employees; and national law determines who is eligible to plead before the ECJ. See EC Treaty, supra note 10, at Protocol 9, Statute of the Court of Justice, art. 19. 13Decisions of the ECJ, for example, are implemented in accordance with the procedures afplicable in the various member states. See id. at art. 256. Id. at art. 249, para. 2. 15 Id. at para. 3. Forms and methods, however, should be chosen in such a way that the stated result or objective of a certain provision in the Directive is also in fact achieved. See Case 48/75, Belg. v. Royer, 1976 E.C.R. 497, para. 75; Case 38/77, Enka v. Inspec- teur der Invoerrechten en Accijnzen Arnhem, 1977 E.C.R. 2203, para. 11. 16 Joined Cases C-6/90 & C-9/90, Francovich v. Italy, 1991 E.C.R. 1-5357, para. 40. FA ULKNER LAW REVIEW Vol. 1-1:53 flict with, or deviate from, Community law. In the latter case, na- tional courts must refrain from applying these national legal meas- ures; not because Community law is of a higher order, but because the national legislature has acted ultra vires.17 The national courts are entrusted with the legal protection of citizens under Commu- nity law 18 and legal actions must follow national legal procedures and national rules on court jurisdiction. In this sense, national courts also act as Community courts. As a general rule, a litigant who wishes to invoke Community law must approach a national court.
Load more

Recommended publications
  • European Union (Withdrawal) Bill – 'Francovich' Claims
    European Union (Withdrawal) Bill – ‘Francovich’ Claims The European Union (Withdrawal) Bill excludes the right to claim damages under the rule in Francovich from being converted into UK law. Under the Francovich rule, a state may be liable for damages where it has failed to implement an EU directive within a specified time (and other conditions are met). Will Francovich be relevant post-Brexit? Francovich claims are only relevant where a Member State has failed to implement an EU directive within the time period for implementation. As such, its exclusion presumably will not be of great relevance post-Brexit when the UK will not be under any obligation to do so. However it may have the following residual relevance: • The exclusion of it via the Bill may prevent retrospective claims for current noncompliance with EU law. • The Francovich principle for damages is based on an ECJ case law concept. For instance a Government breech being ”sufficiently serious” to warrant damages. ”Sufficiently serious” is an ECJ concept and so may develop post Brexit. Removing it would unambiguously take the UK courts away from following the ECJ. It may, however, be a general move to reduce EU law related litigation and bring EU law in line with UK law and remedies. Provisions of European Union (Withdrawal) Bill 2017 (‘EUW Bill’) In accordance with paragraph 4 of Schedule 1 of the EUW Bill: • “There will be no right in domestic law on or after exit day to damages in accordance with the rule in Francovich.” • Schedule 1 of the EUW Bill has effect through s 5(6) (see ss 2(3), 3(5) and 4(3) of the EUW Bill, which state that the retention and conversion of EU law is subject to the exceptions in clause 5 and Schedule 1).
    [Show full text]
  • Spillover Or Backlash? Karen J
    The European Union’s Legal System and Domestic Policy: Spillover or Backlash? Karen J. Alter The legal system of the European Union (EU) offers domestic actors a powerful tool to influence national policy. European law can be drawn on by private litigants in national courts to challenge national policies. These challenges can be sent by na- tional judges to the European Court of Justice (ECJ), which instructs national courts to apply European law instead of national law, or to interpret national law in a way compatible with European law. Combining victories in front of the ECJ with political mobilization and pressure, litigants and groups have used the European legal system to force their governments to change national policies. Using Europe’s legal tool involves overcoming four successive thresholds: First, there must be a point of European law on which domestic actors can draw and favorable ECJ interpretations of this law. Second, litigants must embrace EU law to advance their policy objectives, using EU legal arguments in national court cases. Third, national courts must support the efforts of the litigants by referring cases to the ECJ and/or applying the ECJ’s legal interpretations instead of conflicting national policy. Fourth, litigants must follow through on their legal victory, using it as part of a larger strategy to pressure the government to change public policy.1 A litigation strategy can fail at any of the four steps. When private litigants can surmount these four thresholds, the EU legal system can be a potent tool for forcing a change in national policy. Stated as such, these four steps may sound onerous.
    [Show full text]
  • Environmental Rights in the European Community Dinah L
    Hastings International and Comparative Law Review Volume 16 Article 6 Number 4 Summer 1993 1-1-1993 Environmental Rights in the European Community Dinah L. Shelton Follow this and additional works at: https://repository.uchastings.edu/ hastings_international_comparative_law_review Part of the Comparative and Foreign Law Commons, and the International Law Commons Recommended Citation Dinah L. Shelton, Environmental Rights in the European Community, 16 Hastings Int'l & Comp.L. Rev. 557 (1993). Available at: https://repository.uchastings.edu/hastings_international_comparative_law_review/vol16/iss4/6 This Article is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings International and Comparative Law Review by an authorized editor of UC Hastings Scholarship Repository. Environmental Rights in the European Community By DNAH L. SI-ELTON* The Treaties creating the European Community' contain neither a catalogue of human rights nor a reference to environmental protec- tion. This is not surprising, given the focus of the Community,' as well as its relatively early date of inception. The language closest to both subjects is contained in article 36 of the Treaty of Rome, which states that provisions of the Treaty "shall not preclude prohibitions or re- strictions ...justified on grounds of... the protections of health and life of humans, animals or plants."'3 Despite their general absence from Community documents, both human rights and environmental protection have found their way into Community law as it has evolved over more than three decades. The evolution has not produced a de- clared human right to an environment of a particular quality; how- ever, it has resulted in certain guaranteed environmental rights,4 including the right to receive environmental information, the right to participate in decisions affecting the environment, and the right to ac- * Professor of Law, Santa Clara University.
    [Show full text]
  • Business Law, Fifth Edition
    BUSINESS LAW Fifth Edition This book is supported by a Companion Website, created to keep Business Law up to date and to provide enhanced resources for both students and lecturers. Key features include: ◆ termly updates ◆ links to useful websites ◆ links to ‘ebooks’ for introductory and further reading ◆ ‘ask the author’ – your questions answered www.cavendishpublishing.com/businesslaw BUSINESS LAW Fifth Edition David Kelly, PhD Principal Lecturer in Law Staffordshire University Ann Holmes, M Phil, PGD Dean of the Law School Staffordshire University Ruth Hayward, LLB, LLM Senior Lecturer in Law Staffordshire University Fifth edition first published in Great Britain 2005 by Cavendish Publishing Limited, The Glass House, Wharton Street, London WC1X 9PX, United Kingdom Telephone: + 44 (0)20 7278 8000 Facsimile: + 44 (0)20 7278 8080 Email: [email protected] Website: www.cavendishpublishing.com Published in the United States by Cavendish Publishing c/o International Specialized Book Services, 5804 NE Hassalo Street, Portland, Oregon 97213-3644, USA Published in Australia by Cavendish Publishing (Australia) Pty Ltd 3/303 Barrenjoey Road, Newport, NSW 2106, Australia Email: [email protected] Website: www.cavendishpublishing.com.au © Kelly, D, Holmes, A and Hayward, R 2005 First edition 1995 Second edition 1997 Third edition 2000 Fourth edition 2002 Fifth edition 2005 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, scanning or otherwise, without the prior permission in writing of Cavendish Publishing Limited, or as expressly permitted by law, or under the terms agreed with the appropriate reprographics rights organisation.
    [Show full text]
  • The European Union's Legal System and Domestic Policy: Spillover Or
    The European Union’s Legal System and Domestic Policy: Spillover or Backlash? Karen J. Alter The legal system of the European Union (EU) offers domestic actors a powerful tool to in uence national policy. European law can be drawn on by private litigants in national courts to challenge national policies. These challenges can be sent by na- tional judges to the European Court of Justice (ECJ), which instructs national courts to apply European law instead of national law, or to interpret national law in a way compatible with European law. Combining victories in front of the ECJ with political mobilization and pressure, litigants and groups have used the European legal system to force their governments to change national policies. Using Europe’s legal tool involves overcoming four successive thresholds: First, there must be a point of European law on which domestic actors can draw and favorable ECJ interpretations of this law. Second, litigants must embrace EU law to advance their policy objectives, using EU legal arguments in national court cases. Third, national courts must support the efforts of the litigants by referring cases to the ECJ and/or applying the ECJ’s legal interpretations instead of con icting national policy. Fourth, litigants must follow through on their legal victory, using it as part of a larger strategy to pressure the government to change public policy.1 A litigation strategy can fail at any of the four steps. When private litigants can surmount these four thresholds, the EU legal system can be a potent tool for forcing a change in national policy.
    [Show full text]
  • An Introduction to the Relationship Between European Community Law and National Law in Ireland
    Fordham International Law Journal Volume 20, Issue 4 1996 Article 4 An Introduction to the Relationship Between European Community Law and National Law in Ireland Hugh O’Flaherty∗ ∗ Copyright c 1996 by the authors. Fordham International Law Journal is produced by The Berke- ley Electronic Press (bepress). http://ir.lawnet.fordham.edu/ilj An Introduction to the Relationship Between European Community Law and National Law in Ireland Hugh O’Flaherty Abstract It is possible to isolate three pillars of this emerging legal order which form the basis of any discussion of the relationship between Community law and the laws of individual Member States. These three pillars are the supremacy of Community Law, the effectiveness of Community Law in national courts, and state liability for breach of Community Law. AN INTRODUCTION TO THE RELATIONSHIP BETWEEN EUROPEAN COMMUNITY LAW AND NATIONAL LAW IN IRELAND Hugh O'Flaherty* INTRODUCTION Since obtaining its independence in 1921, Ireland has had two constitutions. Both constitutions were democratic and their differences related more to problems of external sovereignty vis- d-vis Great Britain than to any difference on questions of democ- racy or the rule of law. Indeed, of all the democratic states that were created in Europe after the First World War, the Irish de- mocracy alone survived the vicissitudes of the following three de- cades. Article 5 of the Irish Constitution' proclaims that Ireland is a sovereign independent democratic state. Article 6 provides that all the powers of government derive, under God, from the people.' Furthermore, the Irish Constitution provides for a Na- tional Parliament comprising a Chamber of Deputies, Dail Eire- ann, with extensive powers, 4 a Senate with minor powers of revi- sion,5 a Government, 6 and a President,7 whose powers are largely formal but whose prime duty is to act as guardian of the Consti- tution.
    [Show full text]
  • European Union
    e-RG Electronic Resource Guide European Union Marylin J. Raisch* This page was last updated March 1, 2014. his electronic resource guide, often called the ERG, has been published online by the American Society of International Law (ASIL) since 1997. T Since then it has been systematically updated and continuously expanded. The chapter format of the ERG is designed to be used by students, teachers, practitioners and researchers as a self-guided tour of relevant, quality, up-to-date online resources covering important areas of international law. The ERG also serves as a ready-made teaching tool at graduate and undergraduate levels. The narrative format of the ERG is complemented and augmented by EISIL (Electronic Information System for International Law), a free online database that organizes and provides links to, and useful information on, web resources from the full spectrum of international law. EISIL's subject-organized format and expert-provided content also enhances its potential as teaching tool. 2 This page was last updated March 1, 2014. I. Introduction II. Treaties Establishing the European Union III. Community Acts and Sources of Law IV. Institutions and Powers V. European Court of Justice and Case Law VI. Selected Topical Areas of Research VII. Commentary and Databases VIII. Concluding Review of Updating and Citation Tools I. Introduction This chapter of the ASIL Electronic Resource Guide for International Law (ERG) presents electronic resources for research in the law of the European Union (EU) and its evolving institutional
    [Show full text]
  • The Emergence of a Common European Law in the Area of Tort Law: the Eu Contribution
    Andenas, Bell, Fairgrieve MS. Num. VanGerven 15 August 2002 Page 1 6 THE EMERGENCE OF A COMMON EUROPEAN LAW IN THE AREA OF TORT LAW: THE EU CONTRIBUTION. WALTER VAN GERVEN* The emergence of a common European tort law is brought about by three factors, or driving forces, each of which has its own rationale. First, there is European Community (EC) law where the rationale for developing tort rules is to make a remedy in compensation available for individuals whose ‘Community rights’ have been infringed by Community Institutions, Member States or other individuals. Second, there is the law of the European Convention of Human Rights (ECHR) where the rationale is the preservation, through the award of damages, of ‘Convention rights’ of individuals against infringements by Contracting States. Third, there is comparative law. Today one rationale of comparative law beyond understanding one anothers’ legal systems is to promote convergence and homogeneity between legal systems of States which, as the Member States of the European Union, are engaged in a process of integration. Within such a framework of integration comparative law has become an instrument, in the area of tort law as in others, to prepare legislation and to enforce it, through remedies before domestic courts, in a sufficiently uniform manner in all of the Member States.1 In this contribution I will deal with the first factor of convergence only. I. THE DIRECTIVES ON PRODUCT LIABILITY AND E-COMMERCE: EUROPEAN COMMUNITY LEGISLATION AS A SOURCE OF COMMON RULES The most obvious and direct impact of EC law on the domestic laws of the Member States is when the EC legislature expressly requires Member States to include in their national tort law specified rules that prescribe certain conditions as giving rise to tortious liability on the part of all or some defined class of persons toward other persons … who are to enjoy the benefit of the required rules.
    [Show full text]
  • Urška Šadl* Effet Utile Is One of the Most Contested Terms in European
    CORE Metadata, citation and similar papers at core.ac.uk Provided by Cadmus, EUI Research Repository THE ROLE OF EFFET UTILE IN PRESERVING THE CONTINUITY AND AUTHORITY OF EUROPEAN UNION LAW: EVIDENCE FROM THE CITATION WEB OF THE PRE-ACCESSION CASE LAW OF THE COURT OF JUSTICE OF THE EU Urška Šadl* Effet utile is one of the most contested terms in European case law. The present article empirically analyses its occurrences in the case law across time, legal fields and argumentative contexts. It thereby demonstrates that the main function of effet utile is to mitigate the entrenchment and extension of fundamental doctrines: primacy, direct effect and human rights. On this basis, the article argues that effet utile is primarily a rhetorical instrument used by the Court of Justice of the European Union to decouple legal principles from the practical effects of its decisions with the objective of persuading Member States to accept the authority of European law without compromising its normative coherence and continuity. The analysis is an important contribution to a comprehensive understanding of effet utile and offers a deeper insight into the long-term maintenance of supranational judicial authority. Keywords: effet utile of EU law, Court of Justice of the European Union, supranational judicial authority, incrementalism, coherence. TABLE OF CONTENTS I. INTRODUCTION ......................................................................................... 19 II. DELIMITING THE OBJECT OF INQUIRY .................................................
    [Show full text]
  • Some Thoughts About the Interaction Between Judges and Politicians Koen Lenaerts [email protected]
    University of Chicago Legal Forum Volume 1992 | Issue 1 Article 6 Some Thoughts about the Interaction between Judges and Politicians Koen Lenaerts [email protected] Follow this and additional works at: http://chicagounbound.uchicago.edu/uclf Recommended Citation Lenaerts, Koen () "Some Thoughts about the Interaction between Judges and Politicians," University of Chicago Legal Forum: Vol. 1992: Iss. 1, Article 6. Available at: http://chicagounbound.uchicago.edu/uclf/vol1992/iss1/6 This Article is brought to you for free and open access by Chicago Unbound. It has been accepted for inclusion in University of Chicago Legal Forum by an authorized administrator of Chicago Unbound. For more information, please contact [email protected]. Some Thoughts About the Interaction Between Judges and Politicians Professor Dr. Koen Lenaerts, LL.M.t The drafters of the Treaties establishing the European Com- munities entrusted to the European Court of Justice ("ECJ") the task of "ensur[ing] that in the interpretation and application of [these treaties] the law is observed."1 They could not foresee how the ECJ would fulfill that task, nor did they define the concept of "the law" anywhere in the Treaties. Nevertheless, the drafters agreed that the concept was vital to the operation of the newly created European Community ("EC" or "Community"). Indeed, a Community based on the rule of law would undoubtedly help lay "the foundations of an ever closer union among the peoples of Europe."2 Apart from this basic conception about the proper function of the law in the European Community, representatives from the Member States filled the Treaties with concepts and provisions drawn from public international law, which governs the relations among independent States.
    [Show full text]
  • Principles of Constitutional Law: the Relationship Between the Community Legal Order and the National Legal Orders: Remedies and National Procedures
    Teaching Material PRINCIPLES OF CONSTITUTIONAL LAW: THE RELATIONSHIP BETWEEN THE COMMUNITY LEGAL ORDER AND THE NATIONAL LEGAL ORDERS: REMEDIES AND NATIONAL PROCEDURES J.H.H. Weiler European Union Jean Monnet Professor NYU School of Law AND Martina Kocjan Graduate Member of the Faculty of Law University of Oxford Copyright J.H.H. Weiler & M. Kocjan • 2004/05 These materials are offered as a public service by the Academy of European Law at the EUI in Florence and the Jean Monnet Center at NYU School of Law. They may be used for educational purposes only and cannot be commercialized in any manner. Their origin should be acknowledged in any use made of them. TABLE OF CONTENTS 1 MAKING JUDICIAL PROTECTION MORE EFFECTIVE ........................................... 1 1.1 Joined Cases C-6/90 and 9/90: Francovich .............................................................................1 Note and Questions ...................................................................................................................1 1.2 Case C-91/92: Faccini Dori.......................................................................................................8 Note and Questions ...................................................................................................................8 1.3 Case C-46/93 and 48/93: Brasserie du Pêcheur....................................................................13 Note and Questions .................................................................................................................13 1.4
    [Show full text]
  • Marbury V. Madison and European Union "Constitutional" Review
    Columbia Law School Scholarship Archive Faculty Scholarship Faculty Publications 2004 Marbury v. Madison and European Union "Constitutional" Review George A. Bermann Columbia Law School, [email protected] Follow this and additional works at: https://scholarship.law.columbia.edu/faculty_scholarship Part of the Comparative and Foreign Law Commons, and the Constitutional Law Commons Recommended Citation George A. Bermann, Marbury v. Madison and European Union "Constitutional" Review, 36 GEO. WASH. INT'L. L. REV. 557 (2004). Available at: https://scholarship.law.columbia.edu/faculty_scholarship/936 This Article is brought to you for free and open access by the Faculty Publications at Scholarship Archive. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Scholarship Archive. For more information, please contact [email protected]. MARBURY v. MADISON AND EUROPEAN UNION "CONSTITUTIONAL" REVIEW GEORGE A. BERMANN* I. INTRODUCTION The U.S. Supreme Court's decision in Marbury v. Madison' spe- cifically raises the question of the legitimacy of a "horizontal" spe- cies of judicial review, that is, review by courts of the exercise of powers by the coordinate branches of government. The same question could be asked with respect to judicial review in the Euro- pean Union. More particularly, how problematic or contestable has "horizontal"judicial review been within the European Union as a matter of principle? And, irrespective of its contestability, how have the courts of the European Union exercised "horizontal" review? We will find, however, that it is not the "horizontal" dimen- sion of judicial review, with which Marbuy is associated, but rather its "vertical" dimension, that has generated larger questions of principle within the E.U.
    [Show full text]